Judgement

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

TRADE TAX REVISION NO. 1140 OF 1995

M/s Brijendra Swaroop Agarwal, Aligarh. ....Applicant

Versus

The Commissioner of Trade Tax, U.P., Lucknow. ....Opp.party

.............

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order
of Tribunal dated 10.03.1995 relating to the assessment years 1985-86.

Applicant was carrying on the business of manufacture and sale of bricks. Books of account have been rejected by the assessing authority
and the disclosed turn over was enhanced. First appeal, filed by the applicant was allowed in part. Tribunal rejected the second
appeal.

Heard learned counsel for the parties.

Learned Counsel for the applicant made short submission in respect of two points; 1) that during the year under consideration in
the second season, applicant had operated the klin from 18.01.1986 to 31.01.1986 for 14 days and from 24.02.1986 to 08.03.1986 for
13 days, in all 27 days. Assessing authority in the assessment order observed that there is no material on record to enhance the
firing period for the second season. He submitted that assessing authority as well as all the authorities have illegally taken the
firing period at 37 days in second season and estimated the production, which is unjustified. He further submitted that neither first
appellate authority nor the Tribunal has given any reason for rejecting the average selling rate, disclosed by the applicant and
fixing the average selling rate of Rs.345/- per thousand bricks.

I have perused the order of the Tribunal and the authorities below.

I find force in the argument of the learned counsel for the applicant. In the second season, it appears that applicant had disclosed
the firing period for 27 days and the assessing authority had recorded the finding that there is no material on record to enhance
the firing period in second season. Assessing authority as well as Tribunal has taken firing period at 37 days in place of 27 days.
It appears to be a case of mistake. Tribunal is directed to consider this aspect of the matter from the record.

So far as estimate of average selling rate of Rs.345/- per thousand bricks is concerned, neither first appellate authority nor the
Tribunal has given any basis for estimating the average selling rate at Rs.345/- per thousand bricks. Tribunal is the last Court
of fact, should give some reason for estimating the average selling rate. This aspect of the matter also requires re-consideration.

In the result, revision is allowed. Matter is remanded back to the Tribunal to decide the appeal afresh on the aforesaid two points.
No other points have been raised by learned counsel for the applicant.

Dt.07.10.2004

R./

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